On 6 February 2014, Ms Mark stabbed Mr Thompson multiple times with a knife causing him life threatening injuries. At the time, Ms Mark and Mr Thompson had been in a relationship for approximately three years. It was a relationship that was marred by violence.
Ms Mark was convicted of wounding with intent to cause grievous bodily harm, following a trial by jury presided over by Judge MacKenzie in the District Court at Rotorua. Ms Mark’s defence at trial was that she and Mr Thompson were attacked by several men, who were responsible for Mr Thompson’s injuries.
Ms Mark was sentenced on 27 October 2017 to five years and six months’ imprisonment.[1] She now appeals that sentence.
[1]R v Mark [2017] NZDC 24557.
In support of her appeal Ms Mark has filed an affidavit setting out a completely new account of the events that occurred on 6 February 2014. She now says that Mr Thompson attacked her and that she responded with force. In essence, she says that she should have been sentenced on the basis that she used excessive self-defence.
Background
Ms Mark’s early life was in a gang environment. She was exposed to frequent bouts of domestic violence and substance abuse. Her relationship with Mr Thompson, like her previous relationships, involved considerable violence. There is evidence of the police having been called to 14 domestic violence incidents between Ms Mark and Mr Thompson.
Ms Mark says in her affidavit that on 6 February 2014, she and Mr Thompson had been celebrating his birthday with a small group of associates. Mr Thompson drank heavily and used synthetic cannabis. At one point in the evening Ms Mark and Mr Thompson left the party. Evidence relied upon by the Crown at Ms Mark’s trial suggested that she and Mr Thompson left the party after Ms Mark became concerned about the attention he was paying to another woman. They drove to a friend’s place at which point, according to Ms Mark, Mr Thompson became “really violent”. She says he started to hit her with a bottle, at which point she grabbed a knife that probably belonged to him and stabbed him multiple times. Mr Thompson lost consciousness and was taken to Tokoroa Hospital and from there he was flown to Waikato Hospital. He was later returned to Tokoroa Hospital where he spent several weeks recovering.
Ms Mark also…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mark v R [2019] NZCA 121
Case
[2019] NZCA 121
Decision Date
CaseChat Overview and Summary
In this case, Riingi Puni Mark appealed against the sentence imposed by the District Court, arguing that the sentence was manifestly excessive. Mark was convicted of wounding with intent to cause grievous bodily harm after she stabbed her partner multiple times during an altercation. Mark sought to adduce new evidence that she had acted in self-defence, as her partner had attacked her. The Crown argued that Mark's new evidence was not credible, was not fresh and would not have affected the sentence imposed. The Court of Appeal allowed Mark's appeal against sentence, granted leave to adduce new evidence, quashed the sentence and remitted the case back to the District Court for re-sentencing. The Court found that Mark's new evidence was credible and consistent with the history of abuse in her relationship with her partner. The Court concluded that had the sentencing judge been aware of Mark's new account of events, she may have treated Mark's actions as "excessive self-defence" and reduced the sentence. The Court noted that the new evidence did not undermine the safety of Mark's conviction, but rather highlighted mitigating factors that should have been considered by the sentencing judge. The Court stressed that defendants should not be encouraged to advance conflicting accounts at trial and sentencing.